White House Must Preserve E-mails, Judge Rules

There may be only a handful of days left in the Bush administration, but the brouhaha over White House e-mail retention policies promises to continue right up to the last day.

A federal court yesterday extended a preservation order to ensure that the outgoing administration does everything it can to recover any missing White House e-mails.

The White House IT staff now has five days to scour workstations for missing e-mail before administration data records are archived on Jan. 20. The ruling, by U.S. District Judge Henry Kennedy Jr., also orders staff of the Executive Office of the President (EOP) to relinquish any digital media that may contain e-mails from March 2003 and October 2005.

The legal action is the latest resulting from a lawsuit filed in September 2007 by the National Security Archive against the EOP, seeking to preserve and restore White House e-mails it alleged were missing.

"There is nothing like a deadline to clarify the issues," Tom Blanton, the National Security Archive's director, said in a statement. "The White House will complain about the last-minute challenge, but this is a records crisis of its own making."

The Archive, an independent nongovernmental research institute based at George Washington University, is a repository of government records and does not receive U.S. government funding. The Citizens for Responsibility and Ethics in Washington (CREW), a left-wing public advocacy group, also filed suit, but its legal action was subsequently consolidated with the Archive's legal action, which is taking place in the U.S. District Court for the District of Columbia.

Last May, the White House's top tech staffer acknowledged that three months of data were missing from backup tapes. In earlier testimony before a congressional committee, White House technical staff said millions of e-mails from the past eight years could potentially have been erased.

Also yesterday, Magistrate Judge John M. Facciola held an emergency status conference regarding further measures for protecting record archiving during the presidential transition period.

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The Archive had filed its emergency motion for an extended preservation order on March 11, 2008. Facciola then issued two reports, on April 24 and July 29, recommending an order requiring the search, surrender and preservation of EOP workstations and external media devices.

According to Sheila Shadmand, lead counsel for the Archive, Facciola is expected to make further preservation recommendations in the next two days.

"The legal team for the White House indicated this afternoon it had not taken all the steps previously recommended by the Magistrate," said Shadmand.

Symantec (NASDAQ: SYMC) cited the White House e-mail scandal this week as it announced the official release of its Enterprise Vault 8.0 archiving software, just in time for the incoming Obama administration.

The storage software vendor said the e-mail and content archiving software can help users as Congress addresses archiving and preservation through the Presidential Records Act, the Federal Records Act and the Electronic Communications Preservation Act.